Wisconsin Capitol East Gallery, Supreme Court (Keith Ewing | Flickr CC BY-NC 2.0)
In a decision released late Tuesday, the state Supreme Court sided with Republicans, ruling that new voting maps should take a “least-change approach,” hewing as much as possible to the GOP-tilted maps that locked in a Republican legislative majority 10 years ago.
The 4-3 ruling, in which the justices split along ideological lines, lays the groundwork for the court drawing new legislative districts, after accepting maps from interested parties until Dec. 15, with oral arguments planned for mid-January.
Because the Legislature’s maps were vetoed by Gov. Tony Evers, who called them “gerrymandering 2.0,” the two political branches of government have reached an impasse, “and our involvement in redistricting has become appropriate,” the decision states.
Everyone agrees that the current voting maps, drawn before the latest census, are no longer valid, the decision states. “Some parties to this action further complain that the 2011 maps reflect a partisan gerrymander favoring Republican Party candidates at the expense of Democrat Party candidates,” Justice Rebecca Bradley adds, writing for the majority, using a derisive term for the Democratic Party often employed by Republicans.
Bradley was joined in the majority decision by Justices Annette Ziegler, Patience Roggensack and Brian Hagedorn. Justices Rebecca Dallett, Ann Walsh Bradley and Jill Karofsky dissented.
The decision cites the March 2019 U.S. Supreme Court decision Rucho v. Common Cause, stating that “The United States Supreme Court recently declared there are no legal standards by which judges may decide whether maps are politically ‘fair.’ We agree.”
In Rucho, which involved redistricting in North Carolina and Maryland, the Court ruled that while partisan gerrymandering may be “incompatible with democratic principles,” the federal courts cannot review such allegations, as they present political questions which, unlike voting rights for racial minorities, are outside the power of federal courts, specifically, to decide.Frontsheet
Tuesday’s decision by the Wisconsin Supreme Court states that the current maps were lawfully drawn and that a federal court upheld the 2011 maps enacted by the Republican majority in the Legislature and signed by Republican Gov. Scott Walker.
A federal court struck down the 2011 maps in 2016, when the U.S. District Court of Western District of Wisconsin ruled 2-1 that the 2011 maps were an unconstitutional partisan gerrymander. The U.S. Supreme Court rejected the Wisconsin case in 2018. The Rucho decision of 2019, in which the Court declared that federal courts don’t have the power to rule on partisan gerrymandering, effectively ended further challenges.
“Claims of political unfairness in the maps present political questions, not legal ones,” Bradley writes in Tuesday’s decision. “Such claims have no basis in the constitution or any other law and therefore must be resolved through the political process and not by the judiciary.”
Thus, the decision concludes, the Court will, in deciding on new maps, strive to maintain as much as possible of the existing voting maps.
“Revisions are now necessary only to remedy malapportionment produced by population shifts made apparent by the decennial census. Because the judiciary lacks the lawmaking power constitutionally conferred on the legislature, we will limit our remedy to achieving compliance with the law rather than imposing policy choices,” Bradley writes.
In her dissent, Justice Dallet notes that federal courts, not state courts, have historically resolved redistricting issues, and suggests that the Wisconsin Supreme Court has, by siding with Republicans on a “least change” approach, demonstrated that it is the wrong forum for creating new maps. “First, the majority adopts 2011’s ‘sharply partisan’ maps as the template for its ‘least-change’ approach. And second, it effectively insulates future maps from being challenged as extreme partisan gerrymanders,” Dallet writes. “The upshot of those two decisions, neither of which is politically neutral, is to elevate outdated partisan choices over neutral redistricting criteria.”
She adds: “In that way, adopting a least-change approach is an inherently political choice. Try as it might, the majority is fooling no one by proclaiming its decision is neutral and apolitical.”
The right-wing Wisconsin Institute for Law & Liberty (WILL), which filed the original lawsuit leading to Tuesday’s decision, celebrated the outcome. “Today’s decision recognizes the proper role of the judiciary in the redistricting process,” WILL Deputy Counsel, Anthony LoCoco, said in a statement. “As the United States Supreme Court has recognized, there is no legal standard by which a court could determine what projected political outcome is ‘fair.’ We are pleased that the Court agreed with our arguments that political partisanship is not an appropriate factor to consider when redrawing district maps and that it should follow a least-changes approach in accomplishing its task.”
Sachin Chheda, director of the Fair Elections Project expressed disappointment. “The majority of the State Supreme Court has once again demonstrated its loyalty is to the Republican Party, not the laws of Wisconsin.” Chheda said in a statement. “There is no basis in the constitution or the law to utilize a ‘least changes’ framework, and not only do the justices in the majority know that, they completely misstate federal precedent in this area of the law by dishonestly misrepresenting the findings in Rucho.”
“Whatever comes from this corrupt nonsense,” Chheda added, “if it’s not fair to our state, it shouldn’t be accepted by federal courts, and most importantly, it won’t be accepted by the people of Wisconsin.”
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